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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Friday, September 9, 2011

Circuit reinstates inmate's $500,000 sexual assault verdict

The Court of Appeals reinstates a $500,000 jury verdict in favor of a female jail inmate who was raped by a male corrections officer. The Court finds that the jury properly found Monell liability against the county on the basis that the sheriff was deliberately indifferent to the risk that Cash would be sexually assaulted by an unmonitored guard.

The case is Cash v. County of Erie, decided on August 18. The evidence showed that, at the start of each shift, male sheriff's deputies may walk around unannounced through the female housing units, when the women are undressing, showering or using the toilet. And no county policy prohibited a male deputy from being alone with female prisoners. There were also no monitoring devices to supervise one-on-one interactions. The evidence also showed that in 1999 (three years earlier), a male guard had prohibited sexual intercourse with an exhibitionist female inmate.

Any civil rights lawyer will tell you that it's tough to win a deliberate indifference claim against a county. So while the jury ruled in Cash's favor, the trial court threw out that verdict post-trial. The Second Circuit (Raggi, Jacobs [in dissent] and Rakoff [D.J.]) reinstates the verdict. The evidence suggested that defendants knew there was a risk that male guards might sexually exploit female inmates. The Court notes that, under New York law, "the moral certainty of guards confronting prisoners in sexually tempting circumstances" creates such a "frequent risk of harm to prisoners as to require a complete prohibition of any sexual activity." The 1999 sexual incident also alerted the sheriff that it was not enough to prohibit sexual contact between guards and inmates. The sheriff also knew about sexual assaults at other correctional facilities.

The Court of Appeals concludes, "even if [the sheriff] had no knowledge of prior sexual assaults, it was hardly speculative for a jury to conclude that, at least by 1999, he knew or should have known that guards at [Erie County] and other local correctional facilities were engaging in proscribed sexual contact with prisoners, and that continued reliance on penal proscriptions alone was insufficient to protect prisoners from the range of harms associated with such misconduct." So, while the jail issued a memo telling guards that sex with inmates was prohibited, that was not enough to protect the female inmates. The sheriff should have prevented male guards from hanging around the female housing units when the women are using the shower and otherwise potentially exposing themselves.

Judge Jacobs dissents, concluding that this ruling will effectively "impose strict liability on municipalities and policymakers for any incidents that arise in a prison." He criticizes the majority for casting the issue in general terms: "the 'risk of sexual exploitation posed by male deputies guarding female prisoners.'" It was not enough, Judge Jacobs says, that a female inmate filed a disputed (and potentially questionable) complaint about sexual contact with a male guard three years earlier. In contrast, the jail did take stringent measures to prohibit any future sexual contact. As for the jail's continued reliance on male officers patrolling female housing units, Judge Jacobs writes:

Among the absurdities here is that no guard can know when direct contact may become required; in prison, interventions are not always by appointment. And at the risk of being obvious, this policy would either impose enormous incremental costs or would halve the personnel available for supervision of the facility (and thereby increase the risk of prisoner-on-prisoner violence and abuse).

In any event, the risk associated with having men and women interact in a closed environment is bred in the bone; it means nothing to say that the prison authorities should anticipate it. Abating that risk is another matter. If the majority opinion is sound, the only effective solution would be to have no guards of the opposite sex in women’s or men’s prisons. The majority opinion does not take account of the considerable ramifications. Because male inmates greatly outnumber female inmates, the resulting curtailment of opportunity for female guards would likely trigger valid Title VII suits. People with known same-sex preferences may not be able to serve as guards in any prison. And in another sphere, since military officers are responsible for their subordinates, we could not have mixing of the sexes in the military, unless (I suppose) the officers are paired off.